Citation Nr: 0521238
Decision Date: 08/05/05 Archive Date: 08/17/05
DOCKET NO. 96-45 063 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of service connection for a bilateral eye disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. P. Shonk, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1967 to
November 1974.
This matter comes to the Board of Veterans' Appeals (Board)
from an August 1996 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
The Waco RO acquired jurisdiction thereafter.
Pursuant to a June 2004 Board remand directive, the RO
provided the veteran a February 2005 personal hearing, and
the transcript is of record. Also, it appears that the
veteran had several representatives during various VA
adjudications (including a private attorney); a current VA
Form 21-22, however, designates the service organization on
the cover page of this decision as the veteran's current
representative.
The issue of entitlement to service connection for a
bilateral eye disability is addressed in the REMAND portion
of the decision below and is REMANDED to the RO via the
Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In March 1985, the RO denied the veteran's claim of
service connection for an eye disability by declining to
reopen the matter, and no appeal was initiated within one
year following notice to the veteran.
2. Evidence received since the March 1985 denial is new and
relevant for the claim of service connection for a bilateral
eye disability, and so significant that it must be addressed
with all of the evidence of record in order to fairly
adjudicate the claim.
CONCLUSIONS OF LAW
1. The RO's March 1985 denial letter is final. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103 (2004).
2. New and material evidence has been received since the
March 1985 denial, and the claim is reopened. 38 U.S.C.A. §
5108 (West 2002); 38 C.F.R. § 3.156(a) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Considering the favorable outcome detailed below, VA's
fulfillment of its duties under the Veterans Claims
Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126, need not be addressed at this
time.
Facts
The veteran's service medical records contain a January 1967
induction examination that measured the veteran's distant and
near vision as 20/30 right eye, and 20/25 left eye. Clinical
records indicated that in April 1968, the veteran sustained
injuries in a jeep accident in Vietnam. Concurrent treatment
notes stated that the veteran had been found unconscious at
the accident site, and exhibited disorientation to time and
place upon admission to the hospital. An initial impression
included concussion and multiple contusions to the face, and
further examination revealed a bladder perforation. An x-ray
showed mid-scoliosis of the spine. A clinical record from
the Brooke General Hospital indicated that the veteran was
hospitalized for 37 days. Upon hospital discharge in June
1968, the veteran was alert and asymptomatic, with no
external evidence of a head injury (observation, surgical for
head injury (cerebral contusion) found no disease).
In 1971, the veteran complained of mid-back pain without
radicular pain. An exam found pain on palpation in T9-10
veterbra and attached ribs. The impression was probable back
strain from sleeping posture, R/O HNP.
In November 1972 at the ophthalmology clinic, the veteran
complained of asthenopia and losing place quite a bit. The
veteran received impact resistant lenses. In February 1973,
the veteran complained of musculoskeletal type aching pain in
the right shoulder and right neck aggravated by exercise. An
x-ray found osteophyte encroaching on right C4-5 foramina.
The assessor interpreted the preceding as questionable
osteophyte formation on right C4 root. An October 1974
medical examination at separation measured the veteran's
right eye distant vision 20/20, and near vision 20/30, and
left eye distant vision 20/25, and near vision 20/20. All
physical systems were normal, with the exception of multiple
small scars on the veteran's arms.
Post-service, the veteran filed an April 1976 claim of
service connection, for among other things, low back pain. A
VA examination report found that examination of the veteran's
spine was unremarkable except for pain the lumbosacral area
on deep percussions or on straight leg raising tests; a
clinical diagnosis indicated lumbosacral strain, mild. A
November 1976 rating decision denied the claim, and the
veteran did not initiate an appeal.
In July 1980, the veteran sought service connection for,
among other things, a head injury, and a month later, the RO
denied the claim. The veteran filed a September 1980 notice
of disagreement. Thereafter, the RO received a Statement of
Attending Physician (a Texas Veterans Commission form) with a
diagnosis of probably disc disease, severe. A letter from
Four Corners Chiropractic Center indicated that the veteran
had had six spinal adjustments, and that examinations had
revealed subluxations of L-4, L-1, T-9, T-3, and atlas
vertebrae. A lay statement from the veteran asserted that
his back pain commenced with an in-service jeep accident.
The ensuing statement of the case, with an October 21, 1980,
notice letter, added an issue of service connection for
chronic lumbosacral strain. A substantive appeal was not
initiated.
In August 1981, the veteran again sought service connection
for a head injury from the in-service auto accident. A
January 1982 VA neurological examination found on cranial
nerve examination the veteran's right pupil was dilated and
irregular suggesting a possibility that there was post-
traumatic damage. The examiner stated that based upon
available information, the veteran had a head injury in 1968
with a loss of consciousness. He had residual headaches,
blurred vision, and impairment in concentration (which could
represent a concussive syndrome, although that would be a
rather prolonged period of time since onset). The examiner
stated that records from the time of injury in 1968 would
"be helpful" in analyzing this problem, and referred the
veteran to ophthalmology.
Further VA ophthalmologic examination recorded that the
veteran had been involved in a jeep accident in 1968, and
suffered a ruptured bladder as well as severe head trauma.
The veteran had suffered eye problems, right eye only, since
that time, and had been followed at the Temple Clinic. The
veteran had been maintained on dilating drops including red
top drop. The examiner noted that at the time of the
accident the veteran had had a hyphema in the right eye and
pressure problems in the past. After a physical assessment,
the veteran was diagnosed as having posterior synechia, right
eye, secondary to old trauma, and medical cycloplegia.
A June 1982 rating decision denied a claim of service
connection for a head injury (and implicitly any residual
thereof of concerning vision). In January 1984, the veteran
filed a statement that specifically referred to problems with
his eyes in relation to military service. A hospital summary
from the Houston VA Medical Center (VAMC) noted that the
veteran was admitted in December 1984 for chronic bilateral
iridocyclitis with hyphema, right eye. The veteran's history
included treatment at the Temple VA facility for ankylosing
spondylitis for several years. A physical examination noted
that the veteran had a visual acuity of 20/60 in the right
eye, and 20/40 in the left eye, and both with no improvement
with pin hole. A slit lamp examination showed 360 degrees
posterior synechia in the right eye with rubeosis irides in a
25% layered hyphema with 2+ cell and flare in the anterior
chamber. The lens was clear, but there was a very poor view
of the fundus. In the left eye, the veteran had evidence of
old uveitis with 360 degrees posterior synechia with a few
open areas and trace flare. The discharge diagnosis was the
same as the admission diagnosis.
The RO issued a March 1985 letter stating that service
connection remained denied for the eye disability because the
veteran had not submitted any new and material evidence to
establish that the disability was incurred during military
service. In December 1994, the veteran filed a formal
application for service connection involving breathing and
eyesight problems due to Agent Orange exposure, and in April
1995 the RO denied the claims based on that theory of
causation.
In March 1996, the veteran filed a statement requesting that
his case concerning an eye injury be reopened based upon a VA
outpatient treatment record that identified uveitis left
greater than right eye. In the May 1996 rating decision on
appeal, the RO declined to reopen the claim of service
connection. The veteran thereafter submitted medical
evidence from Mark R. Coffman, M.D., of the Texas Regional
Eye Center, and the RO continued to decline to reopen the
claim in August 1986. That month, the veteran submitted a
notice of disagreement. He also asserted in a lay statement
that he had been terminated from his job as a bus driver.
The veteran's VA Form 9 contained his repeated assertion that
his eye condition had been caused by the in-service jeep
accident.
In June 2001, the veteran filed an informal claim of service
connection for arthritis of the cervical spine and head
injury with headaches.
The RO received an August 2001 letter from Dr. Coffman, who
stated that the veteran had a chronic bilateral uveitis that
affected both eyes and was probably related to ankylosing
spondylitis. Dr. Coffman noted that he had reviewed records
forwarded by the veteran, which reflected back pain as early
as 1971 (his jeep accident was 1968). The record further
documented, according to Dr. Coffman, that the veteran's eye
problems in relation to his uveitis began in 1977. Further,
"[w]hile the veteran did sustain eye trauma in the jeep
accident, this seems to have been the nature of blunt trauma
with hyphema and a secondary mydriatic or dilated pupil in
the left eye." Dr. Coffman opined that the later
development of chronic uveitis was not likely related,
however, to ocular trauma; rather, the veteran's chronic
uveitis was related to underlying ankylosing spondylitis.
Dr. Coffman stated that though he was unable to offer an
opinion as to whether ankylosing spondylitis could have been
triggered by the jeep accident, such a link should be
explored.
A February 2002 Internal Medicine Evaluation for Disability
from the Texas Rehabilitation Commission and conducted by
Nalini Dave, M.D., noted the veteran's complaint of back pain
since the jeep accident. The veteran reported that a few
months earlier he had completely lost his vision while
driving, and his night vision was extremely bad. The
veteran's range of motion of the C-spine, T-spine, and L-
spine was normal. Dr. Dave noted that although chronic
uveitis was a manifestation of ankylosing spondylitis, x-rays
did not show evidence thereof.
A July 2002 rating decision denied claims of service
connection for arthritis of the cervical spine because, as
the RO determined, the veteran's service medical records
lacked evidence that the veteran had been treated for the
condition in service. The RO also denied the claim of
service connection for headaches as a residual of a head
injury because, despite an isolated recordation of headaches
in service, the record lacked further headache complaints as
well as an etiology opinion.
May 2002 Ophthalmology Outpatient Notes from Scott & White
(via the Texas Blind Commission) noted uveitic glaucoma, and
in June 2002, endstage glaucoma right greater than left,
chronic uveitis unknown etiology, PC IOL each eye, and pre-
macular fibrosis. In October 2002, the veteran filed a
statement again referring to the theory of Agent Orange
exposure as the source of his eye problems.
At his February 2005 hearing, the veteran testified that upon
his return to military duty after treatment for injuries from
the jeep accident, he had had headaches and started wearing
glasses. The veteran asserted that he also had cataracts
along with glaucoma and uveitis.
Laws and Regulations
Generally, an unappealed RO decision is final under 38
U.S.C.A. § 7105, and the claim may only be reopened through
the receipt of "new and material" evidence. If new and
material evidence is presented or secured with respect to a
claim that has been disallowed, VA must reopen the claim and
review its former disposition. 38 U.S.C.A. § 5108. See
Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
A regulatory change is effective with respect to claims filed
on or after August 29, 2001, and is not applicable to the
appellant's appeal because his attempt to reopen his claim
was filed prior to this date.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection
may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Analysis
The RO's March 1985 denial concerning the veteran's
application to reopen a claim of service connection for an
eye disability is final because no appeal followed issuance
of the letter. Evidence received into the record since then,
however, justifies reopening the claim for further
consideration. Particularly, Dr. Coffman's August 2001
opinion, which he rendered following a review of the
veteran's records, proffered an alternative theory regarding
an etiological relationship between a current bilateral eye
disability and in-service trauma that had not been of record
during the last final denial. As such, the veteran's appeal
concerning an application to reopen a previously denied claim
is allowed.
ORDER
As new and material evidence has been received, a claim of
service connection for a bilateral eye disability is
reopened.
REMAND
In light of the VCAA, additional evidentiary development is
necessary.
The veteran should be provided a VA examination for the
purposes of a nexus opinion. The examiner should assess
whether the veteran has a current eye disability related to
service (particularly when he sustained a head injury) on a
direct, and a derivative basis (that is, whether the veteran
incurred ankylosing spondylitis in service, which in turn
caused a current eye disability).
Additionally, the record indicates that the RO sought some
Social Security Administration (SSA) information. It appears
that the RO sent an initial request for SSA records on May 9,
2002, and the veteran signed a SSA Form 795 asking that
records from Dr. Mark Lindsay and Dr. Nalini Dave be sent to
VA. Via a March 11, 2002, letter, SSA indicated these
particular files were transmitted. Upon remand, the RO
should attempt to obtain any other outstanding SSA records
that may exist.
Moreover, the RO should confirm that all VA treatment records
from the Temple VA facility since 1971 have been obtained, as
well as records from the Houston VAMC.
Accordingly, this case is REMANDED to the RO for the
following action:
1. The RO should secure any
outstanding SSA disability records, and
VA Temple treatment records since 1971,
and any outstanding treatment records
from the Houston VAMC. Any lack of
success should be documented in the
claims file.
2. The veteran should be scheduled for
a VA medical examination with a
rheumatologist and an ophthalmologist
for the purpose of determining the
etiology of a current bilateral eye
disability. The RO should forward the
veteran's claims file to the VA
examiners for comprehensive review of
the historical medical evidence. The
rheumatologist should provide an
opinion as to whether it is at least as
likely as not that a current eye
disability is etiologically related to
in-service events. The examiner should
address the theory that the veteran's
eye problems are due to ankylosing
spondylitis, which in turn requires an
opinion as to whether any ankylosing
spondylitis was caused by in-service
events. Additionally, an
ophthalmologist should consider whether
a current eye disability is at least as
likely as not related to military
service. All opinions and conclusions
expressed must be supported by a
complete rationale in a report.
3. Then, the RO should readjudicate
the veteran's claim of service
connection a bilateral eye disability
(considering alternative theories of
service connection, including as a
consequence of Agent Orange exposure).
If the determination of the claim
remains unfavorable to the veteran,
the RO must issue a Supplemental
Statement of the Case and provide him
a reasonable period of time to respond
before this case is returned to the
Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C.A. §§ 5109B, 7112).
______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs